When it was signed into law on March 23, 2010, the Affordable Care Act (ACA), commonly referred to as Obamacare, mandated that “restaurants and similar retail food establishments with 20 or more locations list calorie content information for standard menu items on restaurant menus and menu boards, including drive-through menu boards. Other nutrient information—total calories, fat, saturated fat, cholesterol, sodium, total carbohydrates, sugars, fiber and total protein—would have to be made available in writing upon request.”

Development and enforcement of the menu labeling requirement, found in Section 4205 of the Affordable Care Act (ACA), is the responsibility of the U.S. Food and Drug Administration (FDA). Even as select municipalities have instituted their own menu labeling requirements over the years, these new federal regulations will supersede any existing state regulations unless the state successfully petitions the FDA for an exception.

In 2011, the FDA opened up a comment period to give interested parties the opportunity to provide feedback. The FDA continues to oversee the honing of the proposed regulations; however, the agency recently issued a directive with some specific guidance on the requirements for which affected establishments should prepare.

Current Guidance

According to the FDA, these are among the likely requirements for calorie content and related information which will have to be placed on menu boards inside a restaurant and at the drive-thru:

• Must use the word “Calorie” or “Cal”

• Must be in a color that has the same level of visibility as the color of the menu item itself; does not have to be the same exact color

• Must be the same font size

• Must cover all standard menu items (food and beverages); test items appearing on a menu for up to 90 days are exempt

• Must appear on or adjacent to the menu board; may not be listed on a separate board in a different area of the restaurant

• Combo meals must list standardized ranges of calories for combinations unless, if there are specific alternatives, specific related calorie info must be listed

• Must include notification that more nutrient information is available in writing upon request

• Must include a statement to the effect of:

• Consuming 2,000 calories per day is generally recommended. Consider how menu items fit within your total daily needs, which may be higher or lower depending on age, gender and level of physical activity; or

• A 2,000-calorie daily diet is used as the reference point for general nutritional advice. Calorie needs vary depending on age, gender and level of physical activity

It is possible the FDA will order additional nutrient information be available in writing, but that has yet to be determined. In the mean time, the FDA has stated that all calorie content and nutrient information must have a “reasonable basis.” This terminology is likely to be further defined.

Anticipated Effective Date & Potential Penalties

Originally, the FDA intended the menu labeling requirements to go into effect in April 2013. But, in a recent interview, FDA Commissioner Margaret Hamburg told the Associated Press, writing a new menu labeling law “has gotten extremely thorny,” due, in part, to strong lobbying by supermarkets, convenience stores and other retailers that sell prepared food. She said the final rules should become public in the “relative near term.” Once finalized, it is expected establishments will have six months to achieve compliance.

The FDA will enforce what’s called “strict liability”, meaning that if you violate the rules, you’re liable; there are no excuses, no exceptions whether the violation is intentional or a mistake. Penalties will depend on the degree of violation. There are likely to be fines for failure to comply for small infractions. All penalties are likely to be civil in nature although, if repeated or deemed intentional or fraudulent, they could lead to criminal liability.

As soon as final requirements are written, DDIFO will post the information here on the website.